GOPAL VISHNU GHATNEKAR Vs. MADHUKAR VISHNU GHATNEKAR

JUDGEMENT

(1.) The plaintiff and the defendant are brothers. Their father Vishnu Narayan Ghatnekar died on 9-5-1969 leaving behind him the plaintiff, the defendant and other children as his heirs. At the time of his death Vishnu hold shares in a co-operative society and was an allottee of a place of land under a lease from the society on which he had put up a building. Vishnu also had filed a nomination with the society nominating the plaintiff as his nominee to whom the shares, the land and the building should be transferred after his death. By virtue of this nomination the plaintiff claims to be the owner of the entire property consisting of shares, land and building. He also claims possession from the defendant by virtue of the said ownership and on the ground that the defendant was in occupation of the property by virtue of a licence granted by the father and that the same had been terminated.

(2.) It is admitted that the property is that of the father Vishnu. At the time of his death all the heirs of Vishnu become interested in the estate and in ascertainment of what property goes to whom on his death. The suit, therefore, could not have been filed without all the heirs being on record inasmuch as the suit really involves a question of title to the property of the deceased. The suit, therefore, ought to have been dismissed on that ground alone. However, other points hereinafter decided have been argued exhaustively on both sides and it is but fair that I should decide them also.

(3.) The plaintiffs contention is that by virtue of section 30 of the Maharashtra Co-operative Societies Act, 1960 read with Rule 25 framed under the said Act and bye-law 16(1) of the society, a nominee acquires titles to the shares and the property to the exclusion of all the heirs of the deceased and that with the result the plaintiff has become owner of the property and the defendant has no title or interest in the property and is liable to be evicted. It is contended that in any event the nomination paper having been witnessed by two witnesses and all the other formal requirements of a will having been complied with it should be treated as a will and in that circumstance also the plaintiff becomes the exclusive owner of the property and as such entitled to evict the defendant.